Senate Judiciary Committee

This morning, five judicial nominees testified before the Senate Judiciary Committee, the most controversial of whom was Wendy Vitter, tapped for the U.S. District Court for the Eastern District of Louisiana. Among many sharp exchanges that Vitter had with Committee Democrats during the hearing, one was particularly notable:

“Senator, I don’t mean to be coy, but I think I get into a difficult…diff…difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with. Again, my personal, political, or religious views, I would set aside. That is Supreme Court precedent. It is binding. If I were honored to be confirmed, I would be bound by it and of course I would uphold it.”

Blumenthal pressed his question and Vitter repeated her refusal, stating:

“And again, I would respectfully not comment on what could be my boss’ ruling, the Supreme Court. I would be bound by it. And if I start commenting on ‘I agree with this case or don’t agree with that case,’ I think we get into a slippery slope.”

Vitter’s answer has already been criticized by the Leadership Conference on Civil Rights, and judicial nominations guru Christopher Kang, among others. It will no doubt be raised repeatedly by opponents to argue that Vitter is an opponent of the Brown decision and thus, unfit for the bench. Setting aside any normative evaluation of Vitter, it is worth asking: how can a judicial nominee ethically answer Blumenthal’s question?

The “Correct” Answer

From a moral sense, there is little doubt Brown was correctly decided. This is the consensus position of the legal community and of most (but not all) Americans. As such, isn’t that the “correct” answer to the question?

“Brown, Senator, is a seminal decision in the Supreme Court’s history and corrected an egregious error in Plessy v. Ferguson and I believe…I believe it was [correctly decided].”

However, about a minute later, Nalbandian was asked if Roe v. Wade, which established the right to terminate a pregnancy, was correctly decided. He said the following:

“I’m reluctant, and I think it would be inappropriate for me to go down a list of Supreme Court cases and say I think this case was rightly decided and that case was not, because I think it would call into question my partiality going forward.”

The problem here is that the two answers are essentially irreconcilable. Regardless of one’s feelings about the cases, both Brown and Roe are binding precedents of the U.S. Supreme Court. As such, it is truly odd that a nominee can comment on the “correctness” of one without compromising his impartiality, but not the other.

Nalbandian did attempt a distinction between Roe and Brown, arguing that Brown is widely accepted while Roe raises issues that may come before him as a judge. However, it’s hard to accept this answer for two reasons:

First, Nalbandian is up for a lower court judgeship. As such, he will have no opportunity to opine on the “correctness” of Roe. Rather, it is his responsibility to apply Roe, its progeny, and all other Supreme Court precedents. Thus, as a lower court judge, all Supreme Court precedents bind him equally.

Second, there is no such thing as a case that will NEVER come before the judge. Long settled precedents are constantly re-examined in the legal system. Austin, Bowers, Miller, Bakke have all been challenged and re-evaluated before the Supreme Court in the last two decades. As such, the distinction between a “settled” case like Brown and an “unsettled” case like Roe appears even more spurious.

The “Principled” Answer

So setting aside the Brown–Roe decision Nalbandian made, we come back to the Vitter answer, which is to decline to opine on all Supreme Court precedents. After all, it is a lower court judge’s responsibility to apply ALL Supreme Court precedents, even those that they believe to be wrongly decided. As such, the only “principled” answer is to decline to state the “correctness” of any Supreme Court decision.

Unfortunately, this answer looks awful from a political sense. It leads to a nominee being battered for not “supporting” popular precedents such as Brown, or worse, having their partiality questioned through their refusal to answer.

Avoiding the Trap

The dual pressures noted above are not a bug but rather a feature of Blumenthal’s question. Asking whether Brown was correctly decided, while innocuous on the surface, is a cleverly worded Catch-22. Answer in the affirmative and you’re forced into unprincipled verbal gymnastics when the follow-up question about Roe hits. Decline to answer out of principle and you’re branded uncooperative or prejudiced.

As such, I’d propose the following answer to Blumenthal’s question:

“Senator, Brown is a very important precedent of the U.S. Supreme Court. If you’d asked me about the case when I was a private citizen, I would have happily discussed my respect for the decision and its progeny. However, I’m here as a judicial nominee, and as such, I have a responsibility to conduct myself as I would on the bench. Just as it would be inappropriate for a lower court judge to discuss the “correctness” of Supreme Court decisions, it would be equally inappropriate for me. I can, however, assure you that I will faithfully apply Brown and its progeny, as well as all other Supreme Court cases.”

Such an answer adopts the best parts of both Nalbandian’s and Vitter’s answers. It sidesteps the Brown question but makes clear the reasons for the sidestep while re-iterating respect for Brown. While no answer is immune to being twisted, it is unlikely that the answer above would be taken to suggest that the nominee opposed Brown itself.

It will be interesting to see if Blumenthal repeats the Brown question at the hearing in two weeks, and, if he does so, how judicial nominees choose to answer. Should they choose to do so, nominees adopting the proposed answer above will be seen as exercising the sincerest form of flattery.